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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. James Bert WUTZKE, Defendant and Appellant.

No. D033221.

Decided: September 01, 2000

Handy Horiye for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Meagan J. Beale and Crystal L. Bradley, Deputy Attorneys General, for Defendant and Respondent.

In this child molest case, we conclude James Bert Wutzke, who had lived with the child victims' grandmother as her husband for almost 20 years and who had a close “de facto” grandfather relationship with the victims, is a person described in Penal Code 2 section 1203.066, subdivision (c)(1) as a “relative” for purposes of probation eligibility.   Because the trial court mistakenly believed Wutzke did not qualify for probation under such subdivision, we reverse the indeterminate 15-year-to-life sentences imposed under section 667.61, subdivision (b) and remand for resentencing.

In addition, we reverse the count 15 misdemeanor conviction for child molestation (§ 647.6) as not charged within the applicable statute of limitations, and affirm Wutzke's four convictions for committing lewd acts upon two different child victims (§§ 288, subd. (a);  667.61, subd. (b)).  In doing so, we conclude Wutzke's contentions are without merit that the trial court abused its discretion by admitting evidence of prior uncharged conduct under Evidence Code sections 352 and 1108, that the instructions under CALJIC Nos. 2.50.01 and 2.50.1 denied him due process of law, that he received an unfair trial because the court overruled his objections to an expert's testimony regarding the children's interviews and failed to reopen the case during closing arguments, and that the cumulative effect of the court's errors requires reversal.


This case concerns Wutzke's life with Ruth3 and the molestation of certain of her granddaughters.   By all accounts, Wutzke, who lived with Ruth as her husband for almost 20 years without the sanctity of legal marriage, was considered the grandfather of Ruth's grandchildren.   In total, Ruth had eight grandchildren from her three sons John, Greg and Terry.   As relevant to these proceedings, Lauren, born in 1980, and Natalye, born in 1987, were sisters, John's daughters, and had two other siblings.   Jenna, born in 1985, was Terry's stepdaughter who had a younger sister not involved in these proceedings.   Chelsea, born in 1986, was Greg's daughter who had a brother not involved in this case.   Over the years, the various granddaughters involved in the molests would visit Ruth and Wutzke, often overnight and for extended periods of time.   The girls called Wutzke “Papa Jim” or grandpa, and would refer to him and Ruth as their grandparents.

In November of 1997 Jenna told her mother Wutzke had molested her.   After her father was told, he contacted Ruth's other sons who then confronted their daughters, resulting in Chelsea and Natalye admitting that Wutzke had also molested them.   After the matter was investigated further by the authorities, Lauren related to a detective who interviewed her that she also had been molested by Wutzke in 1990 and 1995.

In the prosecution case at trial, the jury heard testimony from each of the alleged victims, from Jenna's mother, from Lauren and Natalye's mother, from the investigating detective, and from Wutzke's two daughters.4  Lauren testified to both the circumstances underlying the charged molestation against her in 1995 and to a prior uncharged molestation in 1990.   The earlier incident occurred 5 days before her 10th birthday, which was also the night before Thanksgiving, when she slept in the same bed between Ruth and Wutzke.   While Ruth slept, Wutzke touched Lauren's breasts and vagina underneath her underwear.   After about five minutes, Lauren pushed him away when he tried to kiss her and put his tongue in her mouth.   Wutzke left the room as Lauren cried and held on to Ruth. Lauren never told Ruth about the incident because she did not think she would be believed.   A week later she told a classmate and her mother about Wutzke's touchings.   Lauren went to counseling and did not see Ruth and Wutzke for some time.

As to the charged offense, while Lauren was spending the night at Ruth and Wutzke's during a school break in April 1995, Wutzke massaged her breasts under her bra for a minute or two when Ruth left the master bedroom where they had been watching television (T.V.) together.   The three had been on the bed in that room while Wutzke was rubbing Lauren's back with an electric massager for a backache.   Lauren did not tell Ruth about this second incident when Ruth returned to the bedroom because Ruth had not believed the 1990 incident had occurred when she was told about it by Lauren's father.   Although she did visit again at Ruth and Wutzke's house after this second molest, Lauren did not ever again spend the night there.

Jenna, who visited her grandparents one weekend a month and more often in the summer, sometimes alone and other times with her cousins, testified as to various touchings by Wutzke that bothered her.   When she arrived at their house, Wutzke would hug her and pinch and pat her rear end.   During the summer, he touched her breasts and sometimes put his mouth to them while she was with him in the T.V. room on the second floor, in the kitchen, on the stairs, and in the white bedroom (guest room) on the second floor.   She was not sure when these events happened.   She talked with her cousins Natalye and Chelsea in the summer of 1996 about the touchings and they agreed not to be alone with Wutzke if at all possible.

Such, however, was not always possible and Jenna found herself again being touched around October 12, 1997, when she spent the night at her grandparents' house after going to dinner with relatives to celebrate Ruth's birthday.   As she pretended to sleep in the white bedroom, Wutzke came into the room, pulled down the comforter and touched her vagina with his finger.   She was scared and shocked and did not know what to do.   She did not remember how long he left his finger there, but said he moved it around for at least two seconds before leaving the room.   She did not tell anyone about this final incident because she did not think anyone would believe her.

Chelsea, who lived in Los Altos, California, testified she had visited Ruth and Wutzke once or twice a year for about 6 to 10 days without her parents since she was 6 or 7 years old.   Sometimes her cousins would also come to stay at the house with her.   The unwanted touchings began during her visit in 1995, when Wutzke came up behind her on the front porch of the house, slid his hands up her shirt and massaged her breasts for a couple of seconds.   She was embarrassed by the touching and pulled away saying she had to go to the bathroom.

The touchings increased the next two summers.   She estimated Wutzke inappropriately touched her breasts during those periods about 12 times.   Chelsea described one incident where he touched her while she was standing out on the balcony of the upstairs master bedroom.   She also described being touched on the balcony the evening Wutzke had taken her to a Chinese dinner where she had worn a “kimono.”   In all, she believed Wutzke had improperly touched her three different times while she was on the balcony, another time while she was opening windows, once in the kitchen while she was facing away from Ruth as Ruth washed dishes, another time in the kitchen while her mother sat talking with Ruth, and also while she was in the upstairs T.V. room, the living room and in the master bedroom.   She did not tell Ruth about the touchings because she thought she would get angry.

In the summer of 1996, Chelsea told Jenna about the touchings and then both girls asked Natalye whether Wutzke had also touched her “weird” like he had touched them.   Natalye cried and told them, “yes.”

Natalye also testified at trial, saying she had visited Ruth and Wutzke about three times a month, often overnight, since her birth in 1987.   She recalled the first time she had been touched was when she was four or five years old while she was sleeping in the white bedroom.   As to this uncharged conduct, Natalye related that Wutzke laid on the bed and reached under her shirt and underwear to touch her bottom private part with his hand and then put his finger on her vagina and rubbed it around.

Natalye also remembered being touched on her upper private area-her breasts.   She could not remember how many times he had touched her there, but specifically recalled an incident after the summer of 1996 while he was hugging her outside the house on the walkway as her grandmother sat sipping tea nearby.   At that time, Wutzke put his hands up her shirt under her bra and touched her breasts for a few seconds until she pushed him away.   She also said he similarly touched her breasts at different times while she was in the kitchen and standing in between the living room and dining room.   She additionally described being touched by Wutzke on her breasts over her swimsuit as she swam at the beach in the summer of 1997.

Natalye could not remember when she told Chelsea and Jenna about the touchings, but thought it was when she was eight years old.   She confirmed the girls agreed to stay together as much as possible.   Natalye did not tell any adults about the touchings until she finally admitted them to her parents.   She had denied any touchings when first asked about it by them because she was scared that if they knew the truth she would not be able to see her grandmother anymore.

Natalye and Lauren's mother, as well as Jenna's mother, testified about the various girls first telling of the touchings.   A stipulation was also read to the jury, telling it that Chelsea's mother never saw Wutzke inappropriately touch her daughter, that Chelsea reported such touchings on November 1, 1997, and that Chelsea had never been told about the 1990 touching incident involving her cousin Lauren.

San Diego County Sheriff's Detective James Nares testified in general as an expert regarding the conducting of child interviews about molestations.   He also specifically testified about certain statements made by Lauren and Chelsea when he interviewed them and about other statements made by Jenna and Natalye to a social worker whose interviews he had viewed behind a one-way mirror with a video camera.

The jury further heard testimony from Wutzke's two adult daughters about earlier uncharged improper touchings.   Jenny H., who was 36 years old, testified that when she was in the third, fourth or fifth grade, between 7 and 10 years old, Wutzke touched her on 1 of her breasts 1 time while they were watching T.V. He had asked her to sit on his lap, had put his hand under her blouse, and had rubbed her nipple for a few seconds before she pushed his hand away and got down.   She never sat on his lap again, never discussed the incident with him and never told her mother or sister about the incident.

When Jenny was divorcing her first husband, she wrote him a letter telling him about the incident, explaining it was the reason for their sexual problems and her bad relationship with her father.   Jenny said she could not stand to be touched since her father had touched her.   On cross-examination, she conceded she had engaged in sexual activity with Ruth's son Terry when she was in high school, and that Terry had been asked to leave the house when Wutzke had walked in on them.

Julie S., Wutzke's oldest daughter, testified Wutzke touched her more than once while she was in her bedroom when she was 9 or 10 years old.   For the most part, the molestations occurred in the same way, with Wutzke coming downstairs and into the bedroom she shared with her sister.   He would then reach under the blankets and her nightgown to feel her breasts.   Julie, who had pretended to be asleep, did not tell anyone about these touchings because she was afraid.

Julie also described one time when Wutzke touched her below the waist when she came out of her walk-in closet.   He put his hand under her dress, over her underwear on her vaginal area, and stimulated her.   She did not tell her mother about this molest because she was afraid there might be a break up of their family and it would be her fault.   She later told a girlfriend in high school about it and then her husband.

At the close of the prosecution case, outside the jury's presence, the court granted Wutzke's motion to reduce the count 5 forcible lewd act against Jenna to a lewd act against a child and dismissed count 8 involving Chelsea.   On the prosecutor's motion the court also dismissed count 1 involving Jenna and counts 9 and 10 involving Chelsea for lack of evidence.   With regard to counts 2, 3 and 4 involving Jenna, the court denied Wutzke's motion to dismiss and denied the prosecutor's motion to modify those counts to allege a different time frame.

The defense case was then presented.   Wutzke did not testify in his own defense.   Ruth testified extensively.   In addition to explaining fully the close personal relationship Wutzke had with her and her family for almost 20 years, she described the numerous contacts she and Wutzke had had with the grandchildren alleged as victims in this case.   The girls always seemed to have fun when they visited her and Wutzke and did not shy away from him.   Although the girls would often stay overnight, they never slept with Wutzke.   Nor was Wutzke often alone with the girls.   With her calendar in hand, Ruth testified about the specific periods during which the girls had testified inappropriate touchings occurred.   Ruth's testimony contradicted much of the girls' testimony, and she told about several incidents when Jenna, Chelsea and Natalye misbehaved.   One incident involved the girls playing loud music and dancing with their panties below their bottoms and another involved Jenna losing her top in the waves three times when the girls were taken to the beach.   Ruth found Jenna to be a problem child who complained a lot and who felt she was treated differently because she was not a “blood” grandchild.   Jenna refused to help Ruth like the other grandchildren did and purposefully took her top off in and outside of the car when taken to the beach with the other girls.

On cross-examination, Ruth's testimony basically implied her granddaughters had lied about the sexual incidents involving Wutzke.   She specifically remembered she had slept between Lauren and Wutzke the night of the alleged 1990 incident and that she had bought the massager in 1996 a year after Lauren had said it was used.   Ruth said she had disclaimed her sons and no longer had any grandchildren because they had disclaimed her when the allegations against Wutzke arose in this case.

One of Ruth's sisters and several friends and neighbors of Ruth and Wutzke testified as character witnesses.   Their general consensus was that Wutzke was a kind, loving person who would not molest children.   A clinical psychologist and expert on the assessment and treatment of sex offenders, who had evaluated all the reports in this case, the preliminary hearing transcript and had administered 17 different clinical tests on Wutzke, opined Wutzke was “not disordered in a way that would predispose him to commit sexual offenses.”

At the close of all evidence, the court instructed the jury on the law in the case.   After the prosecutor gave his initial argument, the court granted Wutzke's renewed motion to dismiss counts 2 and 3 involving Jenna.   At the close of all argument, the court reinstructed the jury on the counts no longer before it for deliberations.   The jury returned verdicts finding Wutzke guilty of count 6 involving Natalye, guilty of counts 11, 12 and 13 involving Chelsea, and count 15 involving Lauren.   The jury found Wutzke not guilty of counts 4 and 5 involving Jenna, not guilty of count 7 involving Natalye, and deadlocked on count 14 involving Lauren.   After finding the deadlock hopeless, the court declared a mistrial on count 14 and dismissed it with the concurrence of the prosecutor.

After denying Wutzke's motion for a new trial on count 6 and determining Wutzke was ineligible for probation under section 1203.066, subdivision (c)(1), the court imposed 4 concurrent terms of 15 years to life for the four felony lewd act convictions under section 667.61, subdivision (b).   The court also imposed a one year concurrent jail term for the count 15 misdemeanor offense.

Wutzke has timely appealed from the judgment of conviction.


Before addressing the contested matters before us on this appeal, we note that the People agree with Wutzke that the count 15 misdemeanor offense involving Lauren must be reversed because its one-year statute of limitations had expired before these criminal proceedings were initiated.   After reviewing the matter, based on the reasoning presented by the parties, we concur and order the count 15 conviction reversed.



Probation Eligibility

Wutzke finally asserts the case must be remanded for resentencing because the court was under the mistaken belief he was ineligible for probation because he did not fall within the meaning of “relative” as described by section 1203.066, subdivision (c)(1) and he therefore must be sentenced under section 667.61.   We agree.

In addition to finding Wutzke guilty of four counts of section 288, subdivision (a), the jury found true the allegations he had committed lewd acts upon more than one victim within the meaning of section 667.61, subdivision (b).15  Subdivision (c)(7) of section 667.61 provides that the 15-year-to-life term described in subdivision (b) applies to violations of section 288, “unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”

Section 1203.066, subdivision (a)(7) provides that a person who has been convicted of committing “a violation of Section 288 ․ against more than one victim” is presumptively ineligible for probation.   Subdivision (c) of section 1203.066 provides that:

“Paragraph[ ] (7) ․ of subdivision (a) shall not apply when the court makes all of the following findings:  [¶] (1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the victim's household.  [¶] (2) A grant of probation to the defendant is in the best interest of the child.  [¶] (3) Rehabilitation of the defendant is feasible, the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence.  [¶] (4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim․  [¶] (5) There is no threat of physical harm to the child victim if probation is granted.   The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so.   The court shall state its reasons on the record for whatever sentence it imposes on the defendant.  [¶] The court shall order the psychiatrist or psychologist who is appointed pursuant to Section 288.116 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court.”

The probation officer's report to the court for sentencing noted Wutzke did not meet the first criteria of section 1203.066, subdivision (c) because he did not satisfy any of the specific relationships mentioned by the statute.   The probation officer also did not believe probation would be in the victims' best interests based on interviews with them and their parents.   The officer noted, however, that a psychiatrist or psychologist would have to address the issue of best interest if such were reached.

At the actual sentencing hearing, the court indicated it had read the probation report and the statements in mitigation and aggravation.   Wutzke's counsel then argued probation should be considered in this case because Wutzke satisfied the five criteria of section 1203.066, subdivision (c).  Counsel specifically asserted with regard to the first criteria:

“[Y]ou have, first and foremost, whether or not the defendant is the victim's natural parent, adoptive parent, step-parent, relative or member of the household.  [¶] He's lived in the household.   And you know, Judge, while a strict interpretation may find, well, this is not strictly applied, the situation as it relates to Mr. Wutzke-I think that would defy the last 20 years of Mr. Wutzke's life and his association with Ruth[.] [¶] Mr. Wutzke ․ is a functional equivalent of the grandparent, the grandfather of these girls.   And [he's] the only grandfather the girls have known from the paternal side.   So he is.   I mean, he's taken and acted as a grandparent in all aspects of life to the children.” 17

After counsel reviewed the other criteria of section 1203.066, subdivision (c), first Ruth, then her sister addressed the court.   Both referred to Wutzke as a member of their family who tried to make life more pleasant and happy for the grandchildren.   The prosecutor then argued Wutzke was not a true relative of the victims, and he did not come within the other four criteria of section 1203.066 to qualify for probation eligibility.

In ruling on the matter, the court stated:

“Counsel, in their arguments, have effectively pinpointed the key issue in this case, which is whether or not the defendant is eligible for probation under the criteria set out in [section] 1203.066[, subdivision] (c).   That section, basically, requires that the defendant be found suitable under all of the criteria.  [¶] The first criteria is whether the defendant is the victims' natural parent, adoptive parent, step-parent, relative or is a member of the victims' household who has lived in the victims' household.   The evidence in this case would seem to indicate that the defendant never married the victims' grandmother.  [T]here's nothing in the code section that would indicate that that type of marital relationship was designed to fall within the parameters of this section.  [¶] [A]ccordingly, ․ as the Legislature has been known to do in different statutes, if they intended that to be the case, they know how to do it.   And they have not done that in this case.  [¶] ․ [T]he court wishes to emphasize that all of those factors have to be positive for the defendant.   Any one that is not applicable, then, deprives him of probation eligibility.   That very first one legally is one that is not going to make him eligible for probation.”

The court pointed out it was “very doubtful” it could find that the other factors under section 1203.066, subdivision (c) worked in favor of the defendant or that probation would be in the best interest of the children in this case because of the “extreme anger and resentment that has been expressed” in the form of Wutzke's license plate holder and in the correspondence the court had received from him which “indicate[d] a deep-seated problem with the fact that these children have come forward.” 18  The court found it was unnecessary to review each of those other factors “because once one is determined to be inapplicable, [Wutzke] fails the [section] 1203.066 test[,] and ․ the court [loses] any jurisdictional ability to sentence him to anything other than to 15 years to life as to each felony count.”

After noting such was the law and it “cannot just do whatever it wishes to do in that regard[,]” the court reviewed the mitigating and aggravating factors, denied probation based on its statutory analysis, and imposed four concurrent indeterminate 15-year-to-life terms for Wutzke's section 288, subdivision (a) convictions based on his current age and his lack of a criminal record.

The crux of Wutzke's contention on appeal is that the trial court erroneously interpreted the first criteria of section 1203.066, subdivision (c) as excluding him from probation eligibility.   He specifically claims, as he did below, that he is a “relative” of the victims within the meaning of section 1203.066, subdivision (c)(1).   Alternatively, he argues exclusion from the class of close intrafamily relationships defined by subdivision (c)(1) of section 1203.066 denies him equal protection of the law.   Because we conclude Wutzke falls within the meaning of “relative” as described by subdivision (c)(1) of section 1203.066, we do not reach his equal protection argument.   We explain.

In 1981, section 1203.066 was enacted as part of the Roberti-Imbrecht-Rains-Goggin Child Sexual Abuse Prevention Act (Stats.1981, ch. 1064, §§ 1-6, pp. 4093-4096).   In reviewing that portion of subdivision (c)(1) of section 1203.066 which applies to a defendant who “is a member of the victim's household who has lived in the household,” our Supreme Court in People v. Jeffers (1987) 43 Cal.3d 984, 239 Cal.Rptr. 886, 741 P.2d 1127 (Jeffers ) extensively discussed the act's legislative history.  (Id. at pp. 993-996, 239 Cal.Rptr. 886, 741 P.2d 1127.)   In doing so, the court examined the testimony before the Joint Committee for Revision of the Penal Code (1979-1980 Reg. Sess.) (Joint Committee) on the “ ‘complex problem of child sexual abuse in California[,]’ ” and commented on the differences between pedophilia and incestuous or intrafamily offenders.  (Id. at pp. 993-995, 239 Cal.Rptr. 886, 741 P.2d 1127.)   The court noted that several witnesses explained that “[a] pedophile or fixated offender was defined as a man ․ who throughout life is sexually attracted exclusively to children, usually boys, within a particular age range[,]” while regressed offenders, those who commit incestuous or intrafamily offenses, were defined as “men who are sexually attracted to adult women but who, for a variety of reasons, have engaged in sexual relations with a child, usually a girl.  [Citation.]”  (Id. at p. 994, 239 Cal.Rptr. 886, 741 P.2d 1127.)

The Joint Committee was told that mandatory prison terms are appropriate for pedophiles because attempts to treat and rehabilitate them have been unsuccessful, but that such mandatory sentences are not necessary to protect the community from intrafamilial regressive offenders who generally can be successfully treated and rehabilitated.  (Jeffers, supra, 43 Cal.3d at p. 994, 239 Cal.Rptr. 886, 741 P.2d 1127.)   Additionally, it was related that mandatory prison terms are not desirable for regressed or intrafamily offenders “ ‘because more of the witnesses would be reluctant to give the kind of testimony that would put their companion, their father, or ․ their “beloved friend” in prison.’  [Citations.]”  (Ibid.;   see also id. at p. 995, 239 Cal.Rptr. 886, 741 P.2d 1127.)

Throughout the legislative process, there was difficulty in formulating a legal definition of intrafamily molesters.   As the court in Jeffers reported, a number of drafts of subdivision (c)(1) of section 1203.066 were considered before the language of the statute as passed was drafted by conference committee.  (Jeffers, supra, 43 Cal.3d at pp. 995-996, 239 Cal.Rptr. 886, 741 P.2d 1127.)   Although the court in Jeffers was concerned with a different portion of section 1203.066, subdivision (c)(1), than is at issue in this case, its analysis of that portion is instructive.

The court in Jeffers explained that the statutory language “is a member of the victim's household who has lived in the household[,]” required the defendant be both “a member of the victim's household” and also “a person who ‘has lived in the household.’ ”  (Jeffers, supra, 43 Cal.3d at pp. 991-992, 239 Cal.Rptr. 886, 741 P.2d 1127.)   The court agreed that the above legislative history of section 1203.066 supported the Court of Appeal's construction of the pertinent phrases of subdivision (c)(1) at issue there that “ ‘living in the household’ denotes physical presence under a common roof whereas being a ‘member of the ․ household’ denotes a quality of relationship.   Being a household member refers not only to the relationships among members of a family, but also to the bonds which may be found among unrelated persons adopting nontraditional and quasi-familial living arrangements.   Thus a member of the victim's household is one who has this quality of relationship with the victim.”  (Jeffers, supra, 43 Cal.3d at p. 992, 239 Cal.Rptr. 886, 741 P.2d 1127.)   The high court, however, was basically concerned with whether the verb “is” in the subject phrase, referred to the time of the offense or the time of sentencing.  (Id. at pp. 992-993, 239 Cal.Rptr. 886, 741 P.2d 1127.)   Finding the provision ambiguous, the court in Jeffers relied on principles of statutory construction which have recognized “ ‘that the controlling issue is the intent of the Legislature [,]’ ” and concluded “that an interpretation of the statute requiring household-member status at the time of the offenses is more consistent with probable legislative intent than an interpretation requiring household-member status at the time of sentencing.”  (Id. at pp. 993, 1000, 239 Cal.Rptr. 886, 741 P.2d 1127.)

In reaching such conclusion, the court in Jeffers looked beyond the plain language of subdivision (c)(1) of section 1203.066 into its legislative history, including the historical circumstances of its enactment, and noted that “[s]tatutes should be construed to produce a reasonable result consistent with the legislative purpose.  [Citation.]”  (Jeffers, supra, 43 Cal.3d at pp. 993-997, 239 Cal.Rptr. 886, 741 P.2d 1127.)   The court specifically stated:

“The provisions of section 1203.066 should be construed in light of the major areas of concern expressed at the legislative hearings, one of which was that a child victim often suffers guilt feelings if a nonviolent molester who has been a father figure for that child is imprisoned.   According to witnesses expressing this concern, the child feels responsible, albeit irrationally, for betraying a relationship of trust.   The likelihood of this occurring would seem to depend directly on the strength of the relationship between the victim and the defendant at the time of the offense and at the time of the ‘betrayal’ (i.e., when the victim first reported the offense)․  [¶] Concern was also expressed at the hearings that a distinction be drawn for purposes of probation eligibility, between those described as intrafamily or ‘regressed’ offenders, who stand some chance of rehabilitation, and the pedophiles or ‘fixated’ offenders, who were considered not amenable to treatment and a greater threat to the community.   An intrafamily offender being, by definition, one who committed the offense while within the family or household unit, the defendant's relationship with the victim at the time of the offense is more relevant for the purpose of identifying intrafamily offenders than the relationship at the time of sentencing.”  (Id. at p. 997, 239 Cal.Rptr. 886, 741 P.2d 1127.)

Here, the record is clear that Wutzke's relationship with the victims at the time of the offenses was a close trusting relationship, with Wutzke being accepted by the victims and their families as a de facto, quasi or step-grandfather within their family units.   Wutzke had lived with Ruth for almost 20 years as her constant companion, was often referred to as her husband, and was the only “paternal” grandfather the young victims had ever known and with whom they spent considerable time.   Under the reasoning of Jeffers, Wutzke's quality of relationship with the victims fits the class of people who are members of the victim's household.  (See Jeffers, supra, 43 Cal.3d at p. 992, 239 Cal.Rptr. 886, 741 P.2d 1127.)   However, because he did not live in the victims' households at the time of the offenses, he does not qualify under that portion of subdivision (c)(1) of section 1203.066 interpreted in Jeffers.  (Jeffers, supra, 43 Cal.3d at at pp. 992-1000, 239 Cal.Rptr. 886, 741 P.2d 1127.)

Rather, Wutzke claims to fall within the meaning of a different statutory term, “relative,” in subdivision (c)(1) of section 1203.066.   We have found only two published cases discussing such term in section 1203.066, subdivision (c)(1).   The first, People v. Gutierrez (1987) 195 Cal.App.3d 881, 241 Cal.Rptr. 180, merely found without discussion or analysis that the defendant there was a “relative” because he was the victim's first cousin.   (Id. at p. 883, 241 Cal.Rptr. 180.)   The court in Gutierrez then decided that contrary to what the psychologist's report in that case stated, a relative is not required to reside in the same household as the victim to fall within the class of people included in section 1203.066, subdivision (c)(1).   (People v. Gutierrez, supra, 195 Cal.App.3d at pp. 883-884, 241 Cal.Rptr. 180.)

The second case dealing with the term “relative,” People v. Groomes (1993) 14 Cal.App.4th 84, 17 Cal.Rptr.2d 469, provides much more guidance for this case.   There the court found that the defendant, whose only relationship with the victim was by marriage to the victim's distant cousin and who did not know the victim before the molestation, was not a “relative” within the meaning of section 1203.066, subdivision (c)(1).   The court in Groomes thus gleaned from the legislative history that:

“[T]he intent [of the Legislature] was not to protect all those related by affinity or consanguinity, but to protect those who hold a close relationship to the child such that if they were imprisoned, the child victim would likely be at risk of harm from further emotional trauma.”  (People v. Groomes, supra, 14 Cal.App.4th at p. 92, 17 Cal.Rptr.2d 469.)

The court in Groomes had turned to the legislative intent after finding the word “relative” in the subject statute to be undefined and unlimited by the Legislature.  (People v. Groomes, supra, 14 Cal.App.4th at p. 92, 17 Cal.Rptr.2d 469.)   It observed that although the defendant there was a “relative” of the victim under the broadest dictionary definition 19 of such term, he did not satisfy the “close emotional relationship with the victim or other members of the victim's immediate family,” as did the other persons identified in subdivision (c)(1) of section 1203.066, i.e., “ ‘natural parent, adoptive parent, stepparent, ․ member of the victim's household who has lived in the household.’ ”  (People v. Groomes, supra, 14 Cal.App.4th at pp. 92-93, 17 Cal.Rptr.2d 469.)   The court in Groomes found that the ordinary meaning of “relative” in common usage, which it doubted “include[d] all persons linked by blood or marriage no matter how attenuated the link [,]” coupled with the legislative intent in enacting section 1203.066, subdivision (c)(1), required it to narrowly construe the term to exclude the defendant there who was “remotely related to the victim by blood or marriage.”  (People v. Groomes, supra, 14 Cal.App.4th at p. 92, 17 Cal.Rptr.2d 469.)

The determination in Groomes is fact specific, leaving to the Legislature any exact line of demarcation between who is or is not included within the meaning of “relative” for purposes of section 1203.066, subdivision (c)(1).  (People v. Groomes, supra, 14 Cal.App.4th at pp. 92-93, 17 Cal.Rptr.2d 469.)   We agree with this reasoning, which is consistent with that of Jeffers, supra, 43 Cal.3d 984, 239 Cal.Rptr. 886, 741 P.2d 1127, that the Legislature's primary intent in enacting the pertinent subdivision is to include within its bounds those persons who have “close emotional relationship[s] with the victim or other members of the victim's immediate family[,]” regardless of blood or marriage.  (People v. Groomes, supra, 14 Cal.App.4th at p. 93, 17 Cal.Rptr.2d 469.)

Applying such rationale to the specific facts of this case, which reveal Wutzke had been in a quasi-familial relationship or “common law” marriage with Ruth for almost twenty years,20 had known the victims all their lives, had interacted with them and their parents as the “paternal” grandfather, and had held a position of trust with the victims, we believe Wutzke at the time of the offenses had the quality of relationship and bond with the child victims that was envisioned by the Legislature in enacting section 1203.066, subdivision (c)(1).21  That being so, it will not result in “mischief or absurdity” to construe “relative” broadly in this case to include Wutzke as a person who falls within the meaning of that term under section 1203.066, subdivision (c)(1).  (See Jeffers, supra, 43 Cal.3d at pp. 998-999, 239 Cal.Rptr. 886, 741 P.2d 1127.)   Because the trial court concluded otherwise, it mistakenly found Wutzke ineligible for probation as a matter of law.

Although the trial court expressed its doubt it would find the other criteria of section 1203.066, subdivision (c) to weigh in Wutzke's favor to qualify him for probation eligibility, the record is unclear as to what the court would have done regarding those other factors if they were viewed objectively with Wutzke satisfying the first criteria of that subdivision as he now does.   After the court stated its reasons for doubting probation would be in the child victims' best interest, it also noted it was without jurisdiction to do anything other than sentence Wutzke under section 667.61, subdivision (b) and that it could not do “whatever it wishes to do in that regard.”   It then reviewed the mitigating factors and imposed concurrent indeterminate 15-year-to-life terms.   Because of such ambiguity in the record, we cannot say there is no reasonable probability the court would have found Wutzke eligible for probation had the error not occurred.   We, therefore, reverse the indeterminate sentences imposed and remand for resentencing with a “fresh consideration” of the factors under section 1203.066, subdivision (c) in light of this opinion.22  (See Jeffers, supra, 43 Cal.3d at pp. 1000-1001, 239 Cal.Rptr. 886, 741 P.2d 1127.)


Count 15 is reversed.   The concurrent 15-year-to-life sentences imposed for counts 6, 11, 12 and 13 are vacated and the matter is remanded for further proceedings consistent with this opinion.   In all other respects the judgment is affirmed.


FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   To protect the anonymity of the children and other sexually molested victims, all family members other than Wutzke will be referred to in this opinion by their first names.

4.   Because Wutzke does not challenge the sufficiency of the evidence to support his convictions, we summarize the relevant evidence, leaving further development of pertinent facts to our discussion of his contentions.

FOOTNOTE.   See footnote 1, ante.

15.   Section 667.61, subdivision (b) provides that a defendant convicted of an offense in subdivision (c) under one of the circumstances described in subdivision (e) “shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years․”Subdivision (e) of section 667.61 states in part that “[t]he following circumstance[ ] shall apply to the offenses specified in subdivision (c):  ․ (5) The defendant has been convicted in the present case ․ of committing an offense specified in subdivision (c) against more than one victim.”

16.   Section 288.1 mandates that any person convicted of committing a lewd act under section 288 upon a child under 14 years of age shall not have his “sentence suspended until the court obtains a report from a reputable psychiatrist, from a reputable psychologist who meets the standards set forth in Section 1027, or from a recognized treatment program pursuant to Section 1000.12 or 1203.066, as to the mental condition of that person.”

17.   In his Statement of Mitigation, Wutzke's counsel had noted that although Wutzke had never married Ruth, he had held her out to be his wife for almost 20 years and that the testimony of the girls in court, both at trial and at the preliminary hearing, and in their interviews with Detective Nares and the social worker referred to Wutzke as their grandfather.   The victims called him grandfather or “Papa Jim” and told their friends and family Wutzke was their grandfather.   Because all households functioned with Wutzke as the girls' grandfather, counsel argued Wutzke should be deemed a relative of the girls.

18.   The correspondence referred to by the court is not part of the record on appeal.   Likewise, as to the license plate holder on Wutzke's car, the prosecutor at the sentencing hearing explained it contained an obscene derogatory reference to grandchildren.   That evidence was not before the jury.

19.   “The dictionary definition of a ‘relative’ is ‘a person connected with another by blood or affinity;  esp.:  one allied by blood.’  [Citations.]”  (People v. Groomes, supra, 14 Cal.App.4th at p. 92, 17 Cal.Rptr.2d 469.)

20.   Although common law marriages are not recognized as legal marriages in California (People v. Aguirre (1997) 56 Cal.App.4th 1135, 1137, fn. 1, 66 Cal.Rptr.2d 77), such unions are not uncommon and the term is often used to describe a close familial, quasi-marital relationship.  (See In re Lisa R. (1975) 13 Cal.3d 636, 642, 119 Cal.Rptr. 475, 532 P.2d 123.)

21.   Interestingly, up until the time of sentencing, even the prosecutor and court referred to and treated Wutzke as the child victims' de facto or quasi-grandfather.

22.   By our reversal, we do not suggest any particular result in this case.   We note, however, that if the court eventually finds that all of the criteria of section 1203.066, subdivision (c) are met, thereby determining that Wutzke is eligible for probation, it still “must exercise its discretion, as it must do whenever an eligible defendant applies for probation, to determine whether probation is appropriate under the particular circumstances of the case.”  (Jeffers, supra, 43 Cal.3d at p. 1000, 239 Cal.Rptr. 886, 741 P.2d 1127;  italics omitted.)

HUFFMAN, Acting P.J.

HALLER, J., and McDONALD, J., concur.